II

104TH CONGRESS

1ST SESSION S. 485

To amend the Solid Waste Disposal Act to provide and clarify the authority

for certain municipal solid waste flow control arrangements.

IN THE SENATE OF THE UNITED STATES

MARCH 2 (legislative day, FEBRUARY 22), 1995

Mrs. HUTCHISON introduced the following bill; which was read twice and

referred to the Committee on Environment and Public Works

A BILL

To amend the Solid Waste Disposal Act to provide and

clarify the authority for certain municipal solid waste

flow control arrangements.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Municipal Waste Flow

5 Control Transition Act of 1995’’.
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1 SEC. 2. CONGRESSIONAL AUTHORIZATION OF STATE AND

2 LOCAL GOVERNMENT CONTROL OVER MOVE3 MENT OF MUNICIPAL SOLID WASTE AND RE4 CYCLABLE MATERIALS.

5 Subtitle D of the Solid Waste Disposal Act is amend6 ed by adding after section 4010 the following new section:

7 ‘‘SEC. 4011. CONGRESSIONAL AUTHORIZATION OF STATE

8 AND LOCAL GOVERNMENT CONTROL OVER

9 MOVEMENT OF MUNICIPAL SOLID WASTE

10 AND RECYCLABLE MATERIALS.

11 ‘‘(a) AUTHORITY.—Each State and each political

12 subdivision thereof is authorized to exercise flow control

13 authority for municipal solid waste, and recyclable mate14 rials voluntarily relinquished by the owner or generator

15 of such materials, generated within its jurisdiction direct16 ing such municipal solid waste or recyclable materials to

17 one or more waste management facilities or facilities for

18 recyclable materials, if such flow control authority—

19 ‘‘(1) is imposed pursuant to a law, ordinance,

20 regulation, or other legally binding provision or offi21 cial act of the State or political subdivision in effect

22 on May 15, 1994; and

23 ‘‘(2) has been implemented by designating be24 fore May 15, 1994, the particular waste manage25 ment facilities in operation as of May 15, 1994, to
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1 which the municipal solid waste or recyclable mate2 rials must be delivered.

3 The authority of this section shall only extend to the spe4 cific classes, categories, volumes or sources of municipal

5 solid waste to which flow control authority requiring a

6 movement to one or more waste management facilities was

7 actually applied on May 15, 1994 (or, in the case of a

8 State or political subdivision that qualifies under sub9 section (b), to the specific classes or categories of munici10 pal solid waste for which the State or political subdivision

11 prior to May 15, 1994, had committed to the designation

12 of one or more waste management facilities). With regard

13 to facilities granted flow control authority pursuant to

14 subsection ‘‘b’’, if the specific classes or categories of mu15 nicipal solid waste are not clearly identified, the authority

16 of this section shall apply only to municipal solid waste

17 generated by households. With respect to each designated

18 facility, the authority of subsections (a) and (b) shall be

19 effective for the remaining life of a contract between the

20 State or political subdivision and any other person for the

21 movement or delivery of such waste or recyclable materials

22 (as in effect May 15, 1994), or until completion of the

23 original schedule for payment of the capital costs of the

24 facility concerned (as in effect May 15, 1994). With re25 spect to any facility to which a local government was di-
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1 recting waste as of May 15, 1994, pursuant to a law or

2 ordinance of the State or political subdivision in effect on

3 May 15, 1994, the authority of this section shall be effec4 tive for the remaining life of a contract between the State

5 or political subdivision and any other person for the move6 ment or delivery of such waste or recyclable materials (as

7 in effect May 15, 1994) or until completion of the original

8 schedule for payment of the capital costs of the facility

9 concerned (as in effect May 15, 1994).

10 ‘‘(b) COMMITMENT TO CONSTRUCTION.—Notwith11 standing the restrictions in subsection (a) (1) and (2), any

12 political subdivision of a State may be granted the flow

13 control authority in subsection (a), if—

14 ‘‘(1) the law, ordinance, regulation, or other le15 gally binding provision specifically provides for flow

16 control authority for municipal solid waste generated

17 within its boundaries and was in effect as of May

18 15, 1994; and

19 ‘‘(2) such political subdivision has taken action

20 prior to May 15, 1994, to commit to the designation

21 of one or more waste management facilities for such

22 method of transportation or disposal of municipal

23 solid waste selected under such law, ordinance, regu24 lation, plan, or legally binding provision. Such a

25 commitment to the designation of one or more waste
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1 management facilities is demonstrated by one or

2 more of the following factors:

3 ‘‘(A) All required permits for the construc4 tion of such facility were trained prior to May

5 15, 1994.

6 ‘‘(B) Contracts for the construction of

7 such facility were ratified and executed in effect

8 prior to May 15, 1994.

9 ‘‘(C) Revenue bonds were presented for

10 sale to specifically provide revenue for the con11 struction of such facility prior to May 15, 1994.

12 ‘‘(D) The State or political subdivision

13 submitted to the appropriate regulatory agency

14 or agencies, on or before May 16, 1994, admin15 istratively complete permit applications for the

16 construction and operation of the waste man17 agement facility.

18 ‘‘(c) RETAINED AUTHORITY.—Upon the request of

19 any generator of municipal solid waste affected by this

20 section, the State or political subdivision shall authorize

21 the diversion of all or a portion of the solid wastes gen22 erated by the generator making such request to a solid

23 waste facility, other than the facility or facilities originally

24 designated by the political subdivision, where the purpose

25 of such request is to provide a higher level of protection
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1 for human health and the environment or to indemnify

2 or reduce potential future liability under Federal or State

3 law of such generator for the management of such wastes,

4 unless the state or political subdivision determines that the

5 facility to which the municipal solid waste is being diverted

6 does not provide a higher level of protection for human

7 health and the environment or does not indemnify or re8 duce the potential future liability under Federal or State

9 law of such generator for the management of such wastes.

10 Requests shall include information on the environmental

11 suitability of the proposed alternative treatment or dis12 posal facility and method, compared to that of the des13 ignated facility and method.

14 ‘‘(d) REASONABLE REGULATION OF COMMERCE.—A

15 law, ordinance, regulation, or other legally binding provi16 sion or official act of a State or political subdivision, de17 scribed in subsection (a) or (b), that implements flow con18 trol authority in compliance with this section shall be con19 sidered to be a reasonable regulation of commerce and

20 shall not be considered to be an undue burden on or other21 wise as impairing, restraining, or discriminating against

22 interstate commerce.

23 ‘‘(e) FLOW CONTROL STUDY.—The Administrator, in

24 cooperation with the National Academy of Public Adminis25 tration and the Secretary of the Treasury, shall conduct
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1 a study of the extent to which the decision of the United

2 States Supreme Court in C&A Carbone v Clarkstown, New

3 York has affected the ability of public and private agencies

4 and entities to secure or retain financing for solid waste

5 management facilities or services. Such study shall ad6 dress whether such decision is likely to interfere with the

7 implementation of State solid waste management plans,

8 and whether such decision is likely to affect recycling or

9 composting. The Administrator shall submit a report on

10 such study to the Congress, together with recommenda11 tions for needed legislation, if any, not later than March

12 31, 1996.

13 ‘‘(f) EFFECT ON EXISTING LAWS AND CON14 TRACTS.—

15 ‘‘(1) ENVIRONMENTAL LAWS.—Nothing in this

16 section shall be interpreted or construed to have any

17 effect on any other law relating to the protection of

18 human health and the environment, or the manage19 ment of municipal solid waste or recyclable mate20 rials.

21 ‘‘(2) STATE LAW.—Nothing in this section shall

22 be interpreted to authorize a political subdivision to

23 exercise the flow control authority granted by this

24 section in a manner inconsistent with State law.
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1 ‘‘(3) OWNERSHIP OF RECYCLABLE MATE2 RIALS.—Nothing in this section shall authorize any

3 State or political subdivision to require any genera4 tor or owner of recyclable materials to transfer any

5 recyclable materials to such State or political sub6 division, nor shall prohibit any generator or owner

7 of recyclable materials from selling, purchasing, ac8 cepting, conveying, or transporting any recyclable

9 materials for purposes of transformation or remanu10 facture into usable or marketable materials, unless

11 the generator or owner voluntarily made such recy12 clable materials available to the State or political

13 subdivision and relinquished any rights to, or owner14 ship of, such recyclable materials.

15 ‘‘(g) DEFINITIONS.—For the purposes of this sec16 tion—

17 ‘‘(1) MUNICIPAL SOLID WASTE.—The term

18 ‘municipal solid waste’ means, subject to the limita19 tions of subsection (a), any solid waste generated by

20 the general public or by households (including single

21 residences and multifamily residences of up to 4

22 units) and from commercial, institutional, and in23 dustrial sources, consisting of paper, wood, yard

24 waste, plastics, leather, rubber, and other combus25 tible materials and noncombustible materials such as
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1 metal and glass, including residue remaining after

2 recyclable materials have been separated from waste

3 destined for disposal, and including waste material

4 removed from a septic tank, septage pit, or cesspool

5 (other than from portable toilets), except that the

6 term does not include—

7 ‘‘(A) any waste identified or listed as a

8 hazardous waste under section 3001 of this Act

9 or waste regulated under the Toxic Substances

10 and Control Act;

11 ‘‘(B) any waste, including contaminated

12 soil and debris, resulting from response taken

13 under section 104 or 106 of the Comprehensive

14 Environmental Response, Compensation, and

15 Liability Act of 1980 or any corrective action

16 taken under this Act;

17 ‘‘(C) construction and demolition debris;

18 ‘‘(D) medical waste listed in section 11002

19 of this Act;

20 ‘‘(E) industrial waste generated by manu21 facturing or industrial processes, including

22 waste generated during scrap processing and

23 scrap recycling;

24 ‘‘(F) recyclable materials; or

25 ‘‘(G) sludge.
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1 ‘‘(2) RECYCLABLE MATERIALS.—The term ‘re2 cyclable materials’ means any materials that have

3 been separated from waste otherwise destined for

4 disposal (either at the source of the waste or at

5 processing facilities) or that have been managed sep6 arately from waste destined for disposal, for the pur7 pose of recycling, reclamation, composting of organic

8 materials such as food and yard waste, or reuse

9 (other than for the purpose of incineration). Mate10 rials shall be deemed ‘recyclable materials’ for the

11 purpose of subsection (a) only if the generator or

12 owner of the materials voluntarily made the mate13 rials available to the State or political subdivision

14 (or the designee of the State or political subdivision)

15 and relinquished any rights to, or ownership of, such

16 materials, and the State or political subdivision (or

17 such designee) assumes such rights to, or ownership

18 of, such materials.

19 ‘‘(3) WASTE MANAGEMENT FACILITY.—The

20 term ‘waste management facility’ means any facility

21 collecting, separating, storing, transporting, trans22 ferring, treating, processing, combusting, or dispos23 ing of municipal solid waste.

24 ‘‘(4) FLOW CONTROL AUTHORITY.—The term

25 ‘flow control authority’ means the authority to con-
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1 trol the movement of solid waste or recyclable mate2 rials and direct such solid waste or recyclable mate3 rials to one or more designated waste management

4 facilities or facilities for recyclable materials.

5 (5) DESIGNATE; DESIGNATION.—The terms

6 ‘designate’, ‘designated’, ‘designating’, and ‘designa7 tion’ mean a requirement of a State or political sub8 division, and the act of a State or political subdivi9 sion, to require that all or any portion of the munici10 pal solid waste or recyclable materials that is gen11 erated within the boundaries of the State or political

12 subdivision be delivered to a waste management fa13 cility or facility for recyclable materials identified by

14 the State or political subdivision.’’.

15 SEC. 3. TABLE OF CONTENTS AMENDMENT.

16 The table of contents for Subtitle D of the Solid

17 Waste Disposal Act is amended by adding the following

18 new item after the item relating to section 4010:

‘‘Sec. 4011. Congressional authorization of State and local government control

over movement of municipal solid waste and recyclable materials.’’

Æ